Case Number: BC688158 Hearing Date: December 10, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ABEL MONTES, ET AL.,,

Plaintiff(s),

vs.

YOUNG MEN’S CHRISTIAN ASSOCIATION OF GLENDALE, ET AL.,

Defendant(s).

Case No.: BC688158

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

December 10, 2019

1. Background Facts

Plaintiffs, Abel Montes, Angela Reisner, and the Estate of Abel Montes, Jr. filed this action against Defendants, Young Men’s Christian Association of Glendale, Eric Perrodin, National Council of Young Men’s Christian Associations of the United States of America, and YMCA of Glendale for damages arising out of wrongful death (premises liability), wrongful death (negligence), and survival claims. Plaintiffs allege their son, Abel Montes, Jr. died when he fell off Defendants’ roof.

2. Motion for Summary Judgment

a. Parties’ Positions

Defendant, Young Men’s Christian Association of Glendale, California (hereafter “Defendant”) moves for summary judgment on the complaint, contending (a) Plaintiffs have no evidence of a dangerous condition on the roof that caused Decedent’s fall, (b) Plaintiffs do not know how Decedent fell, (c) There was no special relationship between Decedent and Defendant, (d) Defendant was legally barred from denying Decedent access to his room, and (e) The survival cause of action fails as a matter of law. Defendant, in the alternative, seeks summary adjudication of four issues that will be discussed below.

Plaintiffs oppose the motion. Plaintiffs argue there were various aspects of the roof, including access to the roof itself, that constitute a dangerous condition. Plaintiffs argue the Declaration of Avrit raises triable issues of material fact concerning how the fall occurred. Plaintiffs argue Defendant’s own policy, and the parties’ contract, should have precluded Defendant from allowing Decedent access to his room on the night in question.

b. Undisputed Facts

Most of the facts relating to the action are not disputed. Decedent was a resident at Defendant’s YMCA on the night in question. Decedent went to a party with two co-workers on New Year’s Eve, 2015. Decedent consumed alcohol and marijuana during the course of the night. Decedent returned to the YMCA at approximately 2 a.m., at which time Eric Perrodin was working at the front desk. Decedent told Perrodin he had consumed a pot brownie and was high. He initially said he would like Perrodin to call 911, but changed his mind. Around 4 a.m., Decedent came back to the lobby and was acting erratically. Decedent then indicated he was returning to his room. At approximately 6 a.m. Perrodin went outside to check for transients and found Decedent lying on the windshield of his vehicle; he was alive, but was later pronounced dead at the hospital.

c. Continuance of Hearing

The Court was originally scheduled to hear this motion on 11/07/19. The Court continued the hearing to 12/10/19 and ordered, among other things, the parties to file briefs in two issues. Specifically, the Court ordered:

· The parties must each file a brief, no more than three pages in length, about the condition of the roof WHERE THE FALL OCCURRED. The Court notes that Plaintiffs appear to be relying on photographs of the roof from the opposite side of the roof, which are not relevant. The Court asks the parties to submit authenticated evidence of a photo or photos of the roof WHERE THE FALL OCCURRED with the brief if the parties are in possession of such evidence.

· The parties must each file a separate brief, no more than three pages in length, concerning the interplay between landlord-tenant law and the YMCA of Glendale Resident Rules and Regulations and Applicant Statement.

o Was the parties’ relationship governed by civil landlord-tenant law?

o What effect did the Statement have on Defendant’s ability, or lack of ability, to exclude Decedent from the premises on the night of the incident?

d. Condition of the Roof

Defendant takes the position, in its moving papers, that Plaintiffs do not have and cannot reasonably expect to obtain evidence that the roof itself was in a dangerous condition at the time of the fall. Defendant contends the photographs Plaintiffs submitted in support of their position that the roof was dangerous are of the opposite side of the roof from where Decedent landed, such that the photographs cannot support the conclusion that the roof in the area where Decedent fell was dangerous.

The Court finds the moving papers are sufficient to meet the moving burden to show Plaintiffs do not have and cannot reasonably expect to obtain evidence that the roof, in the area where Decedent fell, was dangerous. As noted above, the Court continued the hearing on the motion to permit Plaintiffs to submit evidence concerning the condition of the roof in the area where Decedent fell. Plaintiffs submitted the Supplemental Declaration of Avrit in this regard. Avrit, in his supplemental declaration, explains at length the various areas of the roof from which Decedent could have fallen, and then explains why he believes Decedent most likely fell from a specific area of the roof. Avrit provides various exhibits, each of which appear to be artist-rendered depictions of the roof, in order to show where the fall likely occurred. Avrit then states, “Black Circle #2 has the same dangerous characteristics as previously described in my prior declaration. Not only was the roof sloped at an angle, but it was covered with slippery, brittle, broken, and unstable Spanish tiles that, if stepped on, could cause a person to slip, fall, and sustain serious – even fatal – injuries such as the injuries and death suffered by Mr. Abel Montes Jr. The portion of the roof at the YMCA of Glendale residential building from which the fall occurred (Black Circle #2) is sloped and covered with slippery, brittle, broken, and unstable Spanish tiles and more likely than not caused Abel Montes, Jr.’s fall.”

Taking the evidence in the light most favorable to Plaintiffs, as the Court must do on summary judgment, the Court finds the supplemental declaration of Avrit sufficient to raise triable issues of material fact concerning whether the roof, at the location of the fall, was in a dangerous condition.

e. How Decedent Fell

Defendant also contends it is entitled to judgment as a matter of law because Plaintiffs cannot show any condition on the roof caused Decedent to fall. Defendant contends it is equally possible Decedent jumped from the roof, or fell without any dangerous condition. At ¶16 of the Avrit Declaration in support of the opposition to the motion, Avrit explains why he believes it is more probable than not that Decedent fell, as opposed to jumped, from the roof. He opines that the resting position of Decedent was consistent with a slip and fall over a jump. Taking this statement in the light most favorable to Plaintiffs, as the Court must do on summary judgment, the Court finds there are triable issues of material fact concerning whether Decedent jumped or fell to his death.

f. Additional Issues

Because there are triable issues of material fact concerning whether Decedent fell and whether the condition of the roof was dangerous, the Court need not consider the other issues discussed by the parties, such as whether Defendant had a legal obligation to prevent Decedent, in an intoxicated condition, from entering the premises and whether or not access to the roof should have been prevented.

g. Motion for Summary Adjudication

Defendant made an alternative motion for summary adjudication. The motion for summary adjudication fails to comply with CRC 3.1350(d)(2), which provides, “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” Defendant merely re-states each of the same 36 facts in support of its motion for summary judgment in connection with each issue to be adjudicated. The entire purpose of the separate statement in connection with an alternative motion for summary adjudication is to restrict the Court’s attention to the facts that relate directly to the issue presented, rather than the facts that relate to the entire action. The alternative motion for summary adjudication is therefore also denied.

h. Conclusion

There are triable issues of material fact concerning whether the condition of the roof where the fall occurred was dangerous, and whether or not Decedent fell, as opposed to jumped, from the roof. The motion for summary judgment is therefore denied. The motion for summary adjudication is denied as procedurally improper.

Defendant is ordered to give notice.